Is the Item Veto Constitutional
![handle is hein.journals/nclr64 and id is 845 raw text is: OBSERVATION
IS THE ITEM VETO CONSTITUTIONAL?
EUGENE GRESSMANt
Presidents of the United States have repeatedly urged that they be armed,
either by statute or constitutional amendment, with item veto power. That
power would permit a President to selectively approve and disapprove individual
items or sections in bills passed by Congress and presented to the Executive for
approval or disapproval. Already in place in most state constitutions, the item
veto is deemed particularly useful to Presidents acting on appropriation bills;
questionable pork barrel items could be disapproved without having to veto
the entire appropriation bill.
Item veto legislation, however, may violate the constitutional requirements
respecting presidential vetoes. The Executive's powers of disapproval are set
forth in article I, section 7, clauses 2 and 3 of the Constitution. Those provisions
confer power on the President to veto Every Bill which shall have passed the
House of Representatives and the Senate. The problem lies in the word Bill.
By long usage and plain meaning, Bill means any singular, entire piece of
legislation in the form in which it was approved by the two Houses. The consti-
tutional question is whether Congress, by statutory fiat, can expand the word's
meaning by defining as a separate Bill each section, paragraph, or item con-
tained within a single Bill that passes both Houses as an entirety.
This constitutional question is raised by the provisions of a Senate proposal,
known as Senate Bill 43.1 Senate Bill 43 proposes that the President be given
item veto authority with respect to appropriation bills only, for a two-year trial
period.2 Those provisions appear to me to be particularly vulnerable to constitu-
tional infirmity.
t William Rand Kenan Professor of Constitutional Law, University of North Carolina
School of Law. This Observation is drawn from a letter by Professor Gressman, dated July 23, 1985,
addressed to several United States Senators. The letter was sent during the Senate consideration of
Senate Bill 43, 99th Cong., 1st Sess. (1985). The Bill had been introduced by Senator Mattingly and
cosponsored by 46 other Senators. It was reported unfavorably by the Senate Committee on Rules
and Administration. S. REP. No. 92, 99th Cong., 1st Sess. (1985). The Bill was then subjected to a
filibuster on the floor of the Senate. It was withdrawn from consideration, at least temporarily, after
a third attempt to impose cloture and to end the filibuster failed. 131 CoNG. REc. S9942 (daily ed.
July 24, 1985).
1. S. 43, 99th Cong., 1st Sess. (1985).
2. Senate Bill 43 describes itself as a bill
[t]o provide that each item of any general or special appropriation bill and any bill or joint
resolution making supplemental, deficiency, or continuing appropriations that is agreed to
by both Houses of the Congress in the same form shall be enrdlled as a separate bill or joint
resolution for presentation to the President.
Id.
Subsection (a)(1) directs the enrolling clerk in each House to enroll each item of such [appro-
priation] bill or joint resolution [as shall have passed both Houses] as a separate bill or joint resolu-](ViewImageLocal?handle=hein.journals/nclr64&div=35&collection=journals&method=preview&ext=.png&size=3)
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Is the Item Veto Constitutional
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